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Small legal victory for property owners

A court ruling makes it less likely landowners will need to worry about government taking property under WOTUS.

Gary Baise, Attorney at Law

April 3, 2023

2 Min Read
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On March 19, 2023, a U.S. District Court knocked down the Environmental Protection Agency’s and the Army Corps of Engineers’ Waters of the United States definition. This is the day before the WOTUS regulation was to go into effect.

The Order from the District Judge only affects two states. The Court said it “…grants the States’ motion within their sovereign borders and denies the Associations’ request for a nationwide injunction. Therefore, within the states of Texas and Idaho, the court enjoins from implementing or enforcing the final rule entitled “Revised Definition of Waters of the United States.”

The Court also said, “…states that have not challenged the Rule may actually welcome it.” Therefore, the Court did not issue a nationwide injunction.

The Court was also deeply concerned about the significant-nexus test. The Court is concerned that the U.S. Supreme Court may release an Opinion shortly involving the Sackett case and WOTUS.

As I have written, the Court is concerned about the significant-nexus test. The Court is concerned that this test does away with the Interstate Commerce test. The Court is deeply concerned about whether this test I mentioned in an earlier blog is legal.

“The Agencies’ construction of the significant-nexus test ebbs beyond the already uncertain boundaries Justice Kennedy established for it.” The Court also believed that Justice Kennedy’s significant-nexus test, as written by EPA and the Corps, “…does not accurately reflect his test.”

The District Court, under the new March 20 rule, was also concerned about interstate waters regardless of their navigability. The Court says this was not in the Clean Water Act. The Court was also concerned about “the Agencies’ interpretation of the act to include all interstate waters irrespective of any limiting principle raises serious federalism questions.”

Won’t stand up in court?

As you can see, this is not the first time EPA and the Corps have read navigability in the Clean Water Act. The Court believes that Justice Kennedy’s significant-nexus test and Kennedy’s inclusion of interstate waters are two parts of the case and the new WOTUS “…that are unlikely to withstand judicial review.” The Court goes on to point out and accept Idaho’s declaration that the new WOTUS rule would “…increase costs in both monetary and labor hours by staff.”

So, after reviewing irreparable harm, it seems the Court agreed with the state of Texas and 18 national trade associations. In addition to the 18 trade associations, 25 states have filed complaints and motions for preliminary injunctions against EPA and the Corps’ WOTUS Rule. So, this court decided not to issue a nationwide injunction.

The District Court in Texas exercised common sense in not issuing a nationwide injunction against WOTUS. Therefore, it will be some time before farmers and ranchers will have to worry about EPA and the Corps taking property under WOTUS.

The opinions of the author are not necessarily those of Farm Futures or Farm Progress. 

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About the Author(s)

Gary Baise

Attorney at Law, Gary H. Baise

Gary Baise is an Illinois farmer and attorney. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.

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